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ATTORNEYS FOR PETITIONERS: ATTORNEYS FOR RESPONDENTS: MICHAEL R. FRANCESCHINI STEVE CARTER ROBERT W. LOSER, II ATTORNEY GENERAL OF INDIANA PATRICK M. O'BRIEN DAVID A. ARTHUR AYRES CARR & SULLIVAN DEPUTY ATTORNEY GENERAL Indianapolis, IN Indianapolis, IN ______________________________________________________________________

IN THE INDIANA TAX COURT
HIMCO WASTE-AWAY SERVICE, INC., et al., ) ) ) Petitioners, ) ) v. ) Cause No. 49T10-0006-TA-76 ) INDIANA DEPARTMENT OF ) STATE REVENUE and KENNETH L. MILLER, ) in his capacity as Commissioner of the ) Indiana Department of State Revenue, ) ) Respondents. ) ______________________________________________________________________ ORDER ON RESPONDENTS' MOTION TO DISMISS NOT FOR PUBLICATION September 7, 2005 FISHER, J. The Petitioners, Borden Waste-Away Service, Inc., Circle City Recycling, F.W. Richards, Inc., and Usher Transport, Inc., appeal the final determinations of the Indiana Department of State Revenue (Department) denying them a proportional use credit against their motor carrier fuel and surcharge tax (MCFT) liabilities for the second, third and fourth quarters of 1998 and the first and second quarters of 1999 (the periods at issue). The matter is currently before the Court on the Department's motion to dismiss.

The issue for the Court to decide is whether it has jurisdiction to hear the Petitioners' appeal. For the following reasons, the Court GRANTS the Department's motion. FACTS AND PROCEDURAL HISTORY During the periods at issue, the Petitioners operated commercial motor vehicles on Indiana's highways and were therefore subject to the MCFT. See IND. CODE ANN.

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